The Federal Judicial Ethics Code Gets a Makeover

The Judicial Conference of the United States has (gently) amended the Code of Conduct for United States Judges. The revisions, inspired in part by the 2007 Model Code of Judicial Conduct, can be found here and will take effect on July 1, 2009.

It has been reported in the press that the new federal code contains for the first time a definition of the appearance of impropriety. To be sure, the new code does contain a definition of the appearance of impropriety: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” Code of Conduct for United States Judges Canon 2 cmt. (2009). The “old” (but currently in effect) code, however, contains a similardefinition: “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Code of Conduct for United States Judges Canon 2 cmt. (2000). To me, the juxtaposition shows that the only significant change is the explicit inclusion of “temperament” in the test for the appearance of impropriety in the new code, but that trait certainly is not “new” to impropriety analysis. The new definition also omits the word “perception,” which arguably dilutes a true “appearance” standard.